How the "Backstop" breaches international treaties

When speaking with international lawyers they mention a number of difficulties that the EU will discover if they actually try to implement the backstop.

The competence of the 'Withdrawal' Agreement to establish the backstop exceeds its lawful ability, it is Ultra Vires.

Given indications from the President of the EU Council, Donald Tusk in March and October 2018, that the EU would welcome a Canada-style free trade agreement.1 It is worth emphasizing that such a deal could cover the whole UK unless the "Backstop" in the Withdrawal Agreement is inevitable - which both the UK and EU insist it is not. Indeed, if the Backstop is (or becomes) inevitable it must also be permanent and so, in the view of senior lawyers, the Backstop cannot form part of a deal agreed and approved by the EU under Article 50 TEU and must instead be either moved to the Political Declaration or approved under Article 218 TEU.2

The creation of the backstop is not only a breach of the Withdrawal Agreement's powers but also of the EU's own principles and those of other European and international organisations. In particular it breaches the principle of Self-Determination.

Imposing taxation without representation, via the customs union that the Backstop would establish, is not in keeping with the "European values" so often lauded by the EU, and is best avoided for the sake of good neighbourly relations: More specifically, the Backstop would place the EU-27 in breach of a number of their international obligations, including for example:

The 1952 Protocol to the European Convention on Human Rights which ensures "the free expression of the opinion of the people in the choice of the legislature";

The right to self-determination expressed in Article 1 of the UN Charter and expanded upon in various UN Resolutions including: the Principles of International Law Concerning Friendly Relations and Cooperation Among States (UN Resolution 2625(XXV)), the Declaration on the Granting of Independence to Colonial Countries (UN Resolution 1514(XV)), and the International Covenant on Civil and Political Rights (UN Resolution 2200A(XXI));

and The EU's own treaty provisions, including "good neighbourliness" (Article 8 TEU) and the progressive abolition of trade barriers (Article 3(5) TEU) and citizen's rights to participate in the democratic life of the EU (Article 10(3)).

The issue of the Northern Ireland peace process is often cited by opponents of a sovereign Brexit as a reason to support the 'Withdrawal' Agreement, incorrectly claiming that the Good Friday Agreement mandates that no border infrastructure can be introduced, yet no such provision exists. Leaving aside the fact that it would be the Republic of Ireland, at the behest of the EU, that would be constructing customs posts, it is actually the 'Withdrawal' Agreement that breaches the terms of The 1998 Belfast Agreement.

The 'Withdrawal' Agreement seeks to alter the constitutional relationship between Northern Ireland and the United Kingdom without the express consent of the people of Northern Ireland - a view shared by Lord Trimble (the holder of a Nobel Peace Prize) who was an architect of the original agreement and is now preparing to take the UK Government to Court on that basis.'3

Moreover, as a matter of domestic constitutional law, Martin Howe QC has pointed out that the Backstop is also in breach of Article VI of the Act of Union 1800 which established the United Kingdom of Great Britain and Ireland and which is still in force (Ireland now being Northern Ireland for these purposes).4

Lisbon Treaty and Mays deal are illegal under the VIenna Convention on the law of treaties of 1969. Treaties made in conflict against the fundamental laws of a state give us powers of remedy from the EU under the Vienna Convention on the Law of Treaties of 1969. They are listed in Part V of the Treaty

Parliament is a tripartite body and the rule of law binds its individual parts, most particularly the Crown. The two Houses hold the key to the context and content of the law making but the power of Governance is always in the Crown and through the constitutional use of the law. At times of dissolution it becomes starkly apparent where the Sovereign constitutional power resides. The Commons are non-existent and set for re-election and the House of Lords are on hold. Yet there is no transfer of power. The armed services report to the Crown. A dissolution may democratically adjust the membership of the those who sit to advise in the Commons but does not alter the placement of sovereign power. Bills are of no force or effect without Royal Assent; and Ministers are Crown Servants. So it is clear the sovereign power of governance is held by the Crown under a constitutional contract:- Basically this constitutionally means they fall under the remit of having no power to diminish the power of the crown or consequently themselves which makes the Lisbon treaty illegal under international law and the Vienna Convention on the Law of Treaties of 1969

Lisbon Treaty and Mays deal are illegal under the VIenna Convention on the law of treaties of 1969. Treaties made in conflict against the fundamental laws of a state give us powers of remedy from the EU under the Vienna Convention on the Law of Treaties of 1969. They are listed in Part V of the Treaty
Parliament is a tripartite body and the rule of law binds its individual parts, most particularly the Crown. The two Houses hold the key to the context and content of the law making but the power of Governance is always in the Crown and through the constitutional use of the law. At times of dissolution it becomes starkly apparent where the Sovereign constitutional power resides. The Commons are non-existent and set for re-election and the House of Lords are on hold. Yet there is no transfer of power. The armed services report to the Crown. A dissolution may democratically adjust the membership of the those who sit to advise in the Commons but does not alter the placement of sovereign power. Bills are of no force or effect without Royal Assent; and Ministers are Crown Servants. So it is clear the sovereign power of governance is held by the Crown under a constitutional contract:- Basically this constitutionally means they fall under the remit of having no power to diminish the power of the crown or consequently themselves which makes the Lisbon treaty illegal under international law and the Vienna Convention on the Law of Treaties of 1969

In the event of 'no deal', the EU is also seeking to use its internal 'regional trade agreement' to penalise the UK rather than work with the WTO philosophy on the same page:
“the purpose of such [regional trade] agreements should be to facilitate trade between the constituent territories and not to raise barriers to the trade of other Members with such territories; and that in their formation or enlargement the parties to them should to the greatest possible extent avoid creating adverse effects on the trade of other Members;”

This is but the tip of the iceberg.
The proposed Withdrawal Agreement is unbalanced over its lopsided commitment to EU trade agreements, so would appear to conflict with a fundamental principle of the WTO that “arrangements entered into by Members be reciprocal and mutually advantageous"
https://www.wto.org/english/res_e/booksp_e/analytic_index_e/wto_agree_01_e.htm
In the event of 'no deal', the EU is also seeking to use its internal 'regional trade agreement' to penalise the UK rather than work with the WTO philosophy on the same page:
“the purpose of such [regional trade] agreements should be to facilitate trade between the constituent territories and not to raise barriers to the trade of other Members with such territories; and that in their formation or enlargement the parties to them should to the greatest possible extent avoid creating adverse effects on the trade of other Members;”
The EU also signed the Barcelona Declaration respecting national sovereignty and territoriality in the year that the WTO was founded, 1995.
http://eeas.europa.eu/archives/docs/euromed/docs/bd_en.pdf
No wonder the EU wants post-Brexit relationship matters decided by its own biased Court. It is behaving like a rogue state run by a despot.
The UK should refer the EU's cowardly bullying approach to the WTO Disputes Panel and the UN for resolution.

The Backstop and with it the withdrawal agreement are clealy in breach of International law on a number of fronts. Why then are the clear concise and excellent peices on this matter (recently published by Robert Oulds and others) not Front of house news on the BBC Channel 4 etc, and why is Downing Street not shouting it from the rooftops? Clearly we need to leave on our own terms to ensure it is a legally binding withdrawal. Ian Jenkins Independent Mediator East Midlands

The Backstop and with it the withdrawal agreement are clealy in breach of International law on a number of fronts. Why then are the clear concise and excellent peices on this matter (recently published by Robert Oulds and others) not Front of house news on the BBC Channel 4 etc, and why is Downing Street not shouting it from the rooftops? Clearly we need to leave on our own terms to ensure it is a legally binding withdrawal. Ian Jenkins Independent Mediator East Midlands